U.S. Supreme Court will consider Virginia GOP's appeal on gerrymandering case – with a catch

Aileen Devlin/Daily Press / Daily Press

Kirk Cox, center, looks around the chambers after being named the new Speaker of the House during the first day of the Virginia General Assembly at the State Capitol in Richmond on Wednesday, Jan. 10, 2018.

Kirk Cox, center, looks around the chambers after being named the new Speaker of the House during the first day of the Virginia General Assembly at the State Capitol in Richmond on Wednesday, Jan. 10, 2018. (Aileen Devlin/Daily Press / Daily Press)

The U.S. Supreme Court said Tuesday it wants to review Virginia House Republicans’ arguments objecting to a lower court ruling that found 11 House of Delegates districts were racially gerrymandered.

But it wants those arguments to include an explanation of why Kirk Cox, Virginia’s House speaker, thinks he and the House have a right to bring their appeal.

The Supreme Court ordered Cox and the plaintiffs who challenged the districts to file written arguments about whether the Republican-controlled House of Delegates has standing to appeal. In general, only someone harmed by a court ruling has the right to challenge it. Courts won’t decide cases if a petitioner doesn’t have standing.

In an order that the high court described as postponing consideration of its jurisdiction in the case, it asked for a full written argument on standing, in addition to a hearing on other issues Cox’s appeal already raised.

Last month, Virginia Attorney General Mark Herring asked the court to refuse to hear Cox’s appeal.

“The effect is to say we want to hear why the attorney general suggested it be dismissed because they didn’t have standing,” said Carl Tobias, a law professor at the University of Richmond.

Tobias said the unusual order shows the court is interested in the issues raised by the appeal but is uncertain about if Cox and the House are really harmed by lower court’s redistricting order.

In 2016, Tobias said, the Supreme Court ruled then-Rep. Randy Forbes, R-Chesapeake, and other Virginia Republican members of Congress did not have standing to challenge a court ordered redrawing of congressional districts. That ruling essentially said legislators don’t own their seats.

Cox wants to challenge a decision by a panel of the U.S. District Court in Richmond, which ruled earlier this year that the packing of black voters into the 11 House districts — including two on the Peninsula and four in South Hampton Roads — violates federal law by making other districts whiter, which dilutes minority representation.

It has ordered a special master to redraw the lines.

Cox says he believes the current districts are constitutional, and that the panel’s order was based on legal errors.

In seeking the appeal, Cox said those errors include assumptions that the House of Delegates’ consultants used bad methodology and were dishonest when drawing the lines that the General Assembly approved in 2011. He and the House also argued there was nothing improper in the redistricting plan’s target that the 11 districts be at least 55 percent black.

“This redistricting plan passed with an overwhelming bipartisan majority, including the support of most African-American members in the House and Governor Ralph Northam, and was approved by President Obama’s Department of Justice after dozens of public hearings and committee meetings,” Cox said.

Cox said he is still reviewing the option of asking for a freeze on the district court’s redistricting order.

Herring’s argument for dismissing Cox’s appeal turns on the question of who represents Virginia.

The challenge to the 11 districts came in a lawsuit filed by against the state. Once the lower court panel decided the matter, it is up to the state’s lawyer — the attorney general — to accept or to appeal the decision, Herring argued. He said that, after a review of the decision, he decided it was not in the best interests of the state to appeal.

Update: Nov. 14. An earlier version of this story did not include some details about the Supreme Court’s order.